Terms and Conditions of Sale

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I. TERMS AND CONDITIONS OF SALE

 

A. DEFINITIONS

 

The “Customer” is the corporation, individual, partnership, person, or entity purchasing, leasing, or licensing products or services (collectively, “Products”) from Boston Semi ATE, and designated as the “Customer” on the Customer’s Purchase Order. “Boston Semi ATE” (hereafter referred to as “BSE ATE”) is Boston Semi ATE, LLC (dba Boston Semi Equipment), a California Limited Liability Company (LLC) with its principal place of business at 1940 Camino Vida Roble, Carlsbad, California 92008, U.S.A., and its subsidiaries.

 

“Service Agreement” is a written agreement between BSE ATE and its customer pursuant to which services are provided for the support and maintenance of automated test equipment. The specific services and scope of such services are defined in each agreement and can include preship of replacement parts, repair of parts, preventative maintenance, and field labor.

 

“Systems” or “Test Systems” are those Products (or combinations of Products) which are described as “systems” or “test systems” in the BSE ATE Price List as in effect from time to time, or which alone (or in such combination) are capable of performing or conducting automated semiconductor test equipment functions.

 

“Subsystems” or “Major Subsystems” are those Products (or combinations of Products) which are described as “subsystems” in the BSE ATE Price List as in effect from time to time, or which are physically separable principal components of Systems and may be ordered either separately or as part of a System.

 

“Valid Quotation” means a BSE ATE quotation, the terms of which are agreed to by Customer pursuant to a purchase order, as accepted by BSE ATE via an Order Acknowledgment.

 

“Original Manufacturer(s)” are the companies and / or corporations who originally manufactured the test systems or subsystems and provided them for original sale in the market.

 

B. BSE ATE ACCEPTANCE OF CUSTOMER’S ORDER

 

The acceptance by BSE ATE of any order from the Customer for any Products is expressly conditioned upon the Customer’s agreement to accept and be bound by these Terms and Conditions of Sale (including BSE ATE’s Warranty, Service, Training, Software License and Custom Applications Policy). The placement of an order by the Customer shall constitute the Customer’s assent to these Terms and Conditions of Sale.

 

C. MODIFICATIONS AND SUBSTITUIONS

 

BSE ATE reserves the right, as it may deem necessary or appropriate, to modify, or change the specifications of any Products ordered by the Customer prior to delivery, provided that such modifications or changes do not materially and adversely affect the performance of such Products.

 

D. PRICES

 

1. The prices for all Products to be delivered to the Customer shall be either:

 

a. The prices stated to the Customer in a Valid Quotation of BSE ATE, if BSE ATE acceptance of the Customer’s order occurs within thirty 30 days of the date of the quotation, or

 

b. If no Valid Quotation of BSE ATE is in effect and applicable, the prices stated in BSE ATE’s Price List in effect at the time of BSE ATE acceptance of the Customer’s order.

 

2. All prices set forth in BSE ATE’s Price List are subject to change at any time without notice.

 

3. All prices are Ex Works from the applicable BSE ATE facility. The Customer shall pay, and be exclusively liable for, all costs of shipping, delivery, insurance and the like after BSE ATE has caused the placement of the Products at BSE ATE’s dock.

 

4. Prices do not include any tax or other governmental charges or assessments (collectively, “Taxes”) upon the sale, shipment, production, or use of any of the Products ordered by the Customer. The Customer shall be solely responsible for, and will pay to BSE ATE any such Taxes (other than any such tax on BSE ATE income), all of which shall be separately stated on BSE ATE’s invoice to the Customer. If the Customer claims that its purchase of any BSE ATE Products is exempt from Taxes, Customer must provide BSE ATE with an appropriate and valid certificate of exemption issued by or acceptable to the appropriate taxing authority(ies).

 

E. DELIVERY

 

1. Deliveries of Products ordered by the Customer will generally be made in accordance with the deliveries scheduled by BSE ATE and communicated to the Customer.  BSE ATE will attempt in good faith to cause deliveries approximately in accordance with such schedule, but such schedule may vary due to, among other things, conditions beyond BSE ATE’s reasonable control. In no event shall BSE ATE be responsible or liable for any delays or failures to cause delivery in accordance with such schedule, or for any failure to notify the Customer of any such delay or failure. In the event of any delay or failure to cause delivery due to any cause which is unavoidable or beyond BSE ATE’s reasonable control, BSE ATE will have the right, at its option, without penalty or any liability for breach, either to terminate all or any part of its obligation to sell the Products ordered by the Customer or to reschedule delivery of such Products to a later date.

 

2. Unless otherwise specifically stated in writing by the Customer, BSE ATE will have the right to cause the delivery of Products in any number of separate shipments, and BSE ATE may separately deliver to and invoice the Customer for, under these Terms and Conditions, any partial order or partial System which, whether alone or in combination with previously delivered Products of BSE ATE, is of utility to the Customer.

 

F. PAYMENT TERMS

 

1. BSE ATE invoices to the Customer for Products (other than services) will be dated with the date on which the invoiced Products are provided to the carrier for shipment to the Customer. Payment is due per the payment terms outlined on the Valid Quotation from BSE ATE.

 

2. BSE ATE invoices to the Customer for services will be dated with the date of commencement of the BSE ATE Service Agreement, a copy of which will be provided to the Customer on request. Service Agreement invoices are due and payable per the terms of the Service Agreement.

 

3. All overdue payments shall be subject to additional interest and service charges calculated at the rate of 1.5% per month or fraction thereof, or the highest lawful rate, whichever is lower, assessed against the unpaid balance of the invoice from the due date until the date of payment.

 

4. The Customer shall not deduct from amounts due to BSE ATE any amounts alleged to be owed by BSE ATE to the Customer, including but not limited to any damages or losses which the Customer may allege to have sustained as a result of any alleged breach by BSE ATE of any obligation of any kind to the Customer, whether or not arising in connection with any sale of Products by BSE ATE to the Customer.

 

5. BSE ATE invoices to the Customer will be due and payable in accordance with the foregoing Terms and Conditions, notwithstanding partial deliveries of the Products ordered or deliveries in accordance with any schedule authorized by the Customer and agreed to by BSE ATE.

 

G. ACCEPTANCE OF PRODUCTS BY THE CUSTOMER

 

All Products sold by BSE ATE hereunder will be deemed to be accepted by the Customer upon completion of BSE ATE standard acceptance procedures and tests for such Products at a facility designated by BSE ATE or as defined in the mutually agreed Customer acceptance terms. Acceptance will be deemed to have been completed 30 days from shipment of the Products should the Products not have been installed at the customer facility and without completion of the standard acceptance procedure when the delay is not caused by BSE ATE.

 

H. SHIPMENT AND INSURANCE

 

BSE ATE shall, upon the request of Customer, cause shipment, at the Customer’s cost, of its Products using methods of shipment or transport, types and providers of insurance, and carriers as Customer in its sole discretion deems appropriate.

 

I. TITLE

 

Title to all Products sold by BSE ATE to the Customer will pass to the Customer when such Products are placed at BSE ATE’s dock for shipment to the Customer.

 

If, however, the Customer should fail to pay any amount due, when due, to BSE ATE on account of such Products, BSE ATE shall have, in addition to any other rights of BSE ATE, the right to repossess such Products. In addition, until the Customer has paid to BSE ATE the entire amount due to BSE ATE for such Products, BSE ATE shall retain, and the Customer grants to BSE ATE, a security interest in such Products to secure payment in the amount of the full purchase price plus all other amounts due under these Terms and Conditions of Sale and all costs of collection incurred by BSE ATE (including but not limited to reasonable attorneys’ fees and costs), and BSE ATE shall retain all rights and remedies of a secured party under the California Uniform Commercial Code, as in effect at the time of delivery of such Products.

 

By ordering Products from BSE ATE, the Customer authorizes BSE ATE to file any and all financing statements and other documents necessary for BSE ATE to perfect its security interest.

 

Title to all Products leased or rented by BSE ATE to the Customer will not pass to the Customer at any time.

 

 

J. RISK OF LOSS

 

All risk of loss or damage to Products sold or leased or rented by BSE ATE to the Customer shall be assumed by the Customer upon BSE ATE placing such Products at BSE’s dock for shipment to the Customer.

 

 

K. INSPECTION BY THE CUSTOMER

 

The Customer shall carefully inspect all deliveries of Products as they are received by the Customer and report promptly to BSE ATE any claimed error, shortage, defect or non-conformity of such Products. Any failure by the Customer to so inspect and report on within 30 days shall constitute a waiver by the Customer of any claim or right of the Customer against BSE ATE arising with respect to any such error, shortage, defect or non-conformity which was reasonably discoverable by such an inspection.

 

Any and all claims by the Customer for damage, loss, or delays in transit will be made by the Customer against the carrier, and BSE ATE should be informed.  BSE ATE will have no liabilities with respect to any such damage, loss, or delay.

 

L. CANCELLATION BY THE CUSTOMER

 

Cancellation of orders placed may be made only with the express written consent of BSE ATE and upon terms which indemnify BSE ATE against loss.  Cancellation charges are payable immediately upon Customer’s receipt of BSE ATE’s invoice for charges due, following the Customer’s notification of cancellation.

 

 

M. RESCHEDULING BY THE CUSTOMER

 

Any delivery rescheduling requested by the Customer is subject to BSE ATE approval, and, if approved, will also be subject to a service charge in accordance with the schedule of charges listed below, based on the number of days between the date of receipt by BSE ATE of the Customer’s written request for rescheduling and the original scheduled date of delivery. Any such written request must state the Customer’s agreement to pay, upon the rescheduled delivery of the Products, BSE ATE prices in effect at the time of such delivery.

 

 

61 to 90 days: 10% of list price.
31 to 60 days: 15% of list price.
30 days or less: 30% of list price.

 

 

Any request to reschedule beyond ninety (90) days of the original scheduled delivery date, if approved by BSE ATE, shall be treated as a cancellation, subject to the charges detailed in Paragraph L. above.

 

 

N. INFRINGEMENT OF PROPRIETARY RIGHTS

 

1. Subject to Paragraph N.3. below, in the event of any claim or proceeding against the Customer by any third person, in which it is claimed that any Product (or any part thereof) manufactured by BSE ATE infringes upon any other person’s issued patent, or registered copyright, trademark, or service mark (collectively, “proprietary rights”), BSE ATE will settle or defend such claim or proceeding at BSE ATE’s expense, upon and subject to the following conditions and limitations:

 

a. The foregoing undertaking of BSE ATE is expressly conditioned on receipt by BSE ATE of notice from the Customer, in writing and as soon as practicable, of the existence of any such claim or proceeding, and the Customer providing BSE ATE with the appropriate information and assistance as reasonably requested by BSE ATE. BSE ATE shall have the sole and exclusive right, at its expense, to control the defense of any such claim or proceeding and to select counsel of its own choosing, or to settle such claim or proceeding in its sole and absolute discretion.

 

b. BSE ATE will pay all damages and costs assessed against the Customer in connection with any such claim or proceeding, provided, however, that in no event shall BSE ATE be obligated to pay any amount in excess of that actually received by BSE ATE from the Customer in payment for the allegedly infringing Products.

 

c. In the event any Product manufactured by BSE ATE (or any part thereof) becomes (or in the judgment of BSE ATE may become) the subject of any such infringement claim or proceeding, and as a result the use of such Product (or any part thereof) is enjoined (or in the judgment of BSE ATE may be enjoined), BSE ATE will, at its option and expense, either:

 

(1) Procure for the Customer the right to continue to use such Product (or part), or

 

(2) Replace or modify the same with non-infringing Products or part), or

 

(3) Remove such Product (or part provided that removal of such part does not materially and adversely affect the substantial functioning of the Product) and refund the purchase price of such infringing Product (or part).

 

2. By the sale to the Customer of Products manufactured sold as or refurbished by BSE ATE, BSE ATE does not convey to the Customer any license, by implication, estoppels or otherwise, under any patent or patent claims covering combinations of Products manufactured by BSE ATE with any equipment, products, devices, or components not manufactured or provided by BSE ATE.  In addition, BSE ATE’s undertaking with respect to infringement of others’ proprietary rights does not cover any alleged infringement

(i) involving any products, equipment, devices, or components not manufactured by BSE ATE, (ii) involving any combination of any Products manufactured by BSE ATE with any other products, equipment, devices, or components (if such alleged infringement would not exist but for such combination and such combination is not specified, recommended or approved by BSE ATE); (iii) involving Products which are modified after shipment to the Customer (if the alleged infringement would not exist but for such modification and such modification is not specified, recommended or approved by BSE ATE); (iv) where the Customer continues the allegedly infringing activity after being tendered modifications that would have avoided the alleged infringement (without materially and adversely affecting the performance of such Products); (v) where the Customer fails to promptly notify BSE ATE of the infringement claim and such failure materially and adversely affects BSE ATE’s ability to defend such claim; or (vi) for which the Customer is obligated to indemnify, defend and hold BSE ATE harmless pursuant to Paragraph N.3. below.

 

 

3. If the Customer provides BSE ATE with any designs, specifications, or instructions, the Customer shall indemnify, defend and hold BSE ATE (and its officers, managers and members) harmless from and against any and all actions, claims, suits, proceedings, demands, liabilities, expenses, costs, or other losses (including but not limited to damages, lost profits, and attorneys’ fees and costs) arising out of or in connection with infringement of any proprietary rights or alleged rights of any third party which arise or result directly or indirectly, in whole or in part, from compliance by BSE ATE with such designs, specifications, or instructions. BSE ATE further reserves the right to cancel, without any liability to the Customer, any order for any Products the manufacture, sale, and/or use of which, in the judgment of BSE ATE (in its sole and absolute discretion), would or might infringe upon any proprietary right of any third party.

 

4. The foregoing states the entire liability of BSE ATE for any claim by any third party that any Product (or part thereof) sold by BSE ATE to the Customer infringes any proprietary rights of any third party.

 

 

0. NO RESALE INTENDED BY THE CUSTOMER

 

The Customer represents and warrants to BSE ATE that BSE ATE Products are not being purchased by the Customer for resale or any other transfer of such Products to any third party, and that such Products are not being purchased by the Customer on behalf of any such third party (except when such Products are to be used solely by the Customer on behalf of such third party). Unless BSE ATE expressly agrees otherwise in writing, BSE ATE’s Warranty with respect to Products sold to the Customer is not transferable to any third party.

 

P. NO ASSIGNMENT INTENDED

 

Neither the Customer nor BSE ATE may assign any of its respective rights or obligations in connection with any order by the Customer of BSE ATE Products, unless the other party agrees otherwise in writing. Any such assignment or purported assignment shall be void ab initio.

 

Q. BSE ATE WARRANTY OF PRODUCTS

 

The terms and conditions of BSE ATE’s Warranty, set forth in Section II, “Warranty”, shall apply to all products sold by BSE ATE to the Customer, which terms and conditions are hereby incorporated herein by reference.

 

R. SERVICE AND TRAINING

 

The terms and conditions of BSE ATE Service and Support Policies, set forth in Section III, “Service and Support Policies”, and Section IV, “Training Policies”, shall apply to all Products sold by BSE ATE to the Customer, which terms and conditions are hereby incorporated herein by reference.

 

 

S. INTELLECTUAL PROPERTY RIGHTS

 

All title, interests, and rights in and to all intellectual property, including all patents, patent applications, and all improvements, divisions, renewals, continuations, extensions and reissues thereof, and all letters patent granted thereon, and all rights under international conventions with respect thereto, throughout the world, copyrights, copyrightable materials, and registrations and applications for registrations thereof, upgrades, enhancements, modifications and derivative works thereof, inventions, ideas, know-how, techniques, processes, methodology, data, designs, drawings, trademarks, service marks, trade dress, logos, trade names, domain names and web sites, and corporate names and registrations and applications for registration thereof, trade secrets and confidential information of BSE ATE or relating to BSE ATE’s Products (including but not limited to any structure, organization, code, images, photographs, animations, video, audio, music, text, and “applets”), any accompanying printed materials, and any software and (related source and object code) are owned by and shall remain the sole and exclusive property of BSE ATE or its suppliers. The Customer may not use BSE ATE’s trademarks without first obtaining BSE ATE’s prior written consent, and then only within the scope of use authorized by BSE ATE. BSE ATE’s products, materials, documentation and software are protected by copyright laws and international treaty provisions and may not be reproduced, distributed, transmitted, displayed or published without the prior written consent of BSE ATE. The Customer may not alter or remove any patent, copyright, trademark, service mark, or other proprietary notice from any products, materials, documentation or software.

 

 

T. LIMITATION ON BSE ATE LIABILITY; FORCE MAJEURE

 

1. The liability of BSE ATE and the remedies provided to the Customer herein and in BSE ATE’s Warranty, Service Policies (and Service Agreement), Training Policies, and, as set forth in Section V, “BSE ATE End-User License Policy” (and EULA, as defined therein), and, as applicable, Custom Applications Policy and Lease and Rental Systems Policy, constitute the exclusive remedies of the Customer under or in connection with BSE ATE’s Products or the sale or use thereof. Except as specifically provided herein or in BSE ATE’s Warranty, Service Policies (and Service Agreement), Training Policies, End-User License Policy (and EULA), and, as applicable, Custom Applications Policy and Lease and Rental Systems Policy, BSE ATE will not be responsible or liable for any costs, expenses or damages.

 

2. In no event will BSE ATE have any liability to the Customer whatsoever for any non- performance by BSE ATE or delays not otherwise excused which result from or are due to, directly or indirectly, any cause beyond the reasonable control of BSE ATE. Such causes include, but are not limited to, acts of God, wars, riots, civil disturbances, strikes, labor disputes, fires, storms, floods, earthquakes, and natural disasters, actions of any government or agency thereof, judicial action, or any other cause beyond BSE ATE’s reasonable control.

 

3. IN NO EVENT WILL BSE ATE BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY IN CONNECTION WITH ANY PRODUCTS OR ANY SALE OR USE OF PRODUCTS.

 

 

U. ENTIRE AGREEMENT, MODIFICATIONS, AND WAIVERS

 

1. The terms and conditions set forth herein, together with the terms and conditions set forth in BSE ATE’s Warranty, Service Policies, Training Policies, End-User License Policy, and, as applicable, the terms and conditions set forth in Section VI, “BSE ATE Custom Applications Policy”, and Section VII, “Lease and Rental System Policy”, which terms and conditions are hereby incorporated herein by reference, together with any additions thereto or revisions thereof agreed to in writing by BSE ATE, constitute the entire agreement and understanding of BSE ATE and the Customer with respect to servicing or sales, or, as applicable, lease or rental, of Products. Such terms and conditions will control irrespective of any inconsistent, different or additional terms and conditions, whether printed or otherwise, set forth in any communications from the Customer to BSE ATE (to all of which BSE ATE expressly objects) or which otherwise would be deemed established by any course of dealing or course of performance or usage, unless otherwise specifically provided herein or specifically agreed to in writing by BSE ATE.

 

2. BSE ATE may treat any attempted modification, termination, or repudiation to which it does not assent in writing as a breach of the entire agreement hereunder and recover from the Customer all of BSE ATE’s damages (including, but not limited to, special, indirect, consequential, and incidental damages) arising in connection therewith.

 

3. Upon any breach by the Customer or failure by the Customer to comply with any of these Terms and Conditions of Sale, or if the Customer in the judgment of BSE ATE becomes unable to conduct its normal business operations (including the inability to meet its obligations as they mature) or becomes the subject of any proceedings under any state or federal bankruptcy law or other law for the benefit of creditors or relief of debtors or makes any assignment for the benefit of creditors, BSE ATE will have the right immediately to cancel or terminate any and all agreements with or obligations to the Customer relating to sales of BSE ATE Products, in whole or in such part as BSE ATE in its sole judgment shall deem expedient, and recover from the Customer all of BSE ATE’s damages (including but not limited to special, indirect, consequential, and incidental damages) arising in connection therewith.

 

4. BSE ATE will not be deemed to have waived any provision hereof, or any breach by the Customer of any provision hereof, unless specifically set forth in writing and executed by an authorized officer of BSE ATE. No waiver by BSE ATE of any provision hereof or any breach by the Customer hereunder shall constitute a waiver of such provision on any other occasion or a waiver of any other breach by the Customer.

 

5. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof shall not affect in any way the validity and enforceability of the remainder of such provision, term, or condition, or of any other provision, term, or condition.

 

V. GOVERNING LAW

 

These Terms and Conditions of Sale and the transactions contemplated hereby shall be governed by, and construed, interpreted, and enforced in accordance with, the internal laws of the state of California, USA, excluding the application of its conflicts of law rules. Any dispute, claim, controversy, suit or proceeding, whether at law or in equity, shall be brought exclusively in the State or Federal District Courts sitting in the County of San Diego within the State of California for the purpose of any such actions or proceedings, and, by ordering Products from BSE ATE, the Customer irrevocably submits and hereby consents to the sole and exclusive jurisdiction thereof for such purposes.

 

 

 

II. BSE ATE WARRANTY

 

A. BSE ATE WARRANTY

 

 

1. Parts

Except as provided below, BSE ATE warrants that all new Products manufactured by BSE ATE or used products supplied by BSE ATE will be free from defects in material and workmanship and will function and perform in accordance with either BSE ATE’s specifications provided by BSE ATE to the Customer or the specification as provided by the Original Manufacturer for such Products at time of order, for the period as defined on the Valid Quotation from BSE ATE.

 

This Warranty is provided by BSE ATE only to the original Customer, only at the time of purchase and is applicable only to Products located at the original site of installation. The Customer shall provide to BSE ATE proof of original purchase and date of delivery of the Products or installation within the applicable Warranty period, in order to assert this limited Warranty.

 

BSE ATE’s obligations under this Warranty are conditioned upon, and this Warranty shall remain in effect only if, the Products are installed, maintained, serviced, and used in accordance with BSE ATE or the Original Manufacturer’s Service Policies and are used in a customary and normal manner, and for the purposes and uses for which they were designed. In addition, this Warranty shall be void if defects or failures of the Products were caused by the Customer’s negligence, misuse, including use beyond rated capacities or specifications, accident, unauthorized repair, alteration, or installation, or use with accessories, attachments or other devices not furnished or installed by BSE ATE or its authorized agents, employees or subcontractors.

 

In the event that any warranted Product or component part thereof is determined by BSE ATE to be defective under the terms and conditions of this Warranty, BSE ATE, at its sole option, will service, adjust, repair, or replace the defective Product or component part, in accordance with BSE ATE or Original Manufacturer’s Service Policies, at a location chosen by BSE ATE. No defective parts shall be returned to BSE ATE unless authorized at the time replacement parts are requested pursuant to a Returned Material Authorization Number (“RMA”), and shall be returned freight prepaid. Defective parts deemed outside of the warranty terms can be replaced. These replacement parts require a purchase order or Service Agreement and shall be issued to the Customer after the defective part is received.

 

2. Labor

 

Diagnosing problems is the Customer’s responsibility. Should the Customer be unable to diagnose a problem with the assistance of BSE ATE telephonic and remote diagnostics capability, on- site Field Service support can be provided by BSE ATE to the Customer for the period as defined on the Valid Quotation from BSE ATE.

 

3. Software

 

BSE ATE proprietary software is warranted for one year from date of shipment in accordance with the terms and conditions of the BSE ATE End-User License Agreement (EULA)

 

 

4. Customer Responsibility

 

It is the sole and exclusive responsibility of the Customer to determine the suitability of any and all Products of BSE ATE for the Customer’s intended applications.

 

 

B. WARRANTY TERMINATION

 

 

1. Circumstances Terminating a Warranty

 

The BSE ATE Warranty is granted by BSE ATE only to the original Customer and is applicable only to Products which remain installed at the original location of installation and, as indicated in the original Warranty, for the time period commencing from the date of shipment of the Product.  The BSE ATE Warranty may be terminated under certain circumstances; such circumstances include, but are not limited to:

 

 

a. Time Expiration: The expiration of the original Warranty time period.

b. Location Change: A change in the location of the warranted Product from the original location of installation.

c. Ownership Change: A change in the owner of the warranted Product.

 

C. EXCLUSION OF OTHER WARRANTIES

 

This Warranty is the sole and exclusive Warranty given by BSE ATE with respect to any Products sold or provided by BSE ATE, and BSE ATE gives and makes no representation or warranty of any kind, express or implied, other than those expressly set forth in this Warranty. No representative of BSE ATE is authorized to give or make any other representation or warranty or to modify this Warranty in any way. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE IS GIVEN OR MADE BY BSE ATE, ALL OF WHICH IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.

 

 

D. LIMITATION OF LIABILITY

 

Except for the limited Warranty provided herein, BSE ATE shall have no liability, obligation, or responsibility of any kind or in any way for any losses, costs, expenses, or other damages (including but not limited to any damages resulting from loss of sales, revenues, profits, use, goodwill, or data; delays; inconvenience; or any special, indirect, incidental, or consequential damages) resulting from any representation or warranty of any kind made by BSE ATE with respect to BSE ATE’s Products or the performance or the failure thereof, or arising in any way out of or in connection with the purchase or use of BSE ATE’s Products or services by the Customer, even if BSE ATE has been advised of the possibility of such damages.

 

In no event will BSE ATE have any liability to the Customer whatsoever for any non- performance by BSE ATE delays not otherwise excused which result from or are due to, directly or indirectly, any cause beyond the reasonable control of BSE ATE; such causes include, but are not limited to, acts of God, wars, riots, civil disturbances, strikes, labor disputes, fires, storms, floods, earthquakes, natural disasters, actions of any government or agency thereof, judicial action, or any other cause beyond BSE ATE’s reasonable control.

 

Furthermore, in no event whatsoever shall BSE ATE’s liability under this warranty or in connection with BSE ATE Products (or the Customer’s purchase or use thereof) exceed the amount which has actually been received by BSE ATE from the Customer and is directly attributable to the specific Products with respect to which any damages arise (including, but not limited to, any liability for infringement of any patent, copyright, trademark, or other proprietary rights; for negligence; or for any damages in any action based upon contract or tort and arising out of or in connection with such products, or the sale or use thereof, or any other product or service provided by BSE ATE to the Customer hereunder, or in connection with any of the foregoing or otherwise).

 

 

III SERVICE AND SUPPORT POLICIES

 

Labor

 

A. CUSTOMER RESPONSIBILITY

 

The Customer is responsible for initial diagnosis of test system faults. Should the Customer be unable to resolve a problem with the assistance of BSE ATE telephone or remote diagnostic support, on-site support can be provided.

 

B. STANDARD SERVICE AND SUPPORT WORKING HOURS

 

The standard working hours for BSE ATE global offices are Monday through Friday 8:30 a.m. to 5:30 p.m. (excluding public holidays) based on local time at the relevant BSE ATE location.  During these hours Customers have access to all relevant support activities from BSE ATE.

 

C. EXTENDED SERVICE AND SUPPORT WORKING HOURS

 

The Customer can purchase, at a charge, extended hours of support coverage from BSE ATE. This service is provided at the sole and absolute discretion of the local BSE ATE office.

 

D. LABOR RATE WORKING HOURS

 

Customers purchasing labor services from BSE ATE have a standard working day between 7:00 a.m. and 7:00 p.m. during which time labor will be billed at the standard daily labor rate applicable in the relevant BSE ATE location. All time outside of the standard labor working day, including public holidays, will be charged at 1.5 times the standard daily labor rate. This service is provided at the sole and absolute discretion of the local BSE ATE office.

 

E. TRAVEL AND SUBSISTENCE

 

The Customer is responsible for reimbursement of all Travel and Subsistence charges should the Customer request an onsite visit and / or an overnight stay for BSE ATE to provide labor services.

 

Spare and Repair Parts

 

A. REPAIR EXCHANGE POLICY

 

BSE ATE uses Repair Exchange of test system parts in the majority of cases to provide a speedy replacement of defective parts, which means that BSE ATE provides a replacement part of the same part number but not the same serial number. When a part number of the same kind is not available BSE ATE will perform a Repair Return of the Customer’s part.

 

B. SPARE PART AVAILABILITY AND REPAIR TURNAROUND

 

BSE ATE will provide a spare part, if available, from local spares inventory. Should a spare part not be available within local inventory, BSE ATE will employ reasonable commercial efforts to ensure that a part is available as soon as possible. BSE ATE will provide board repair on a reasonable commercial efforts basis when repair is provided outside a BSE ATE Service Agreement.

 

 

C. REPAIR AND SPARE PART WARRANTY

 

The Standard spare part warranty for a part provided from a BSE ATE stocking location or for a repair part is as provided on a BSE ATE Valid Quotation or within the terms of a BSE ATE Service Agreement.

 

D. CUSTOMER SPARE PART RETURNS

 

A Customer that requests a spare part from BSE ATE prior to the return of their defective part is responsible to return the defective part to BSE ATE within 14 days of the shipment of the spare part to the customer location. Should the spare part return not be received within 14 days, BSE ATE reserves the right to charge the customer the full list price of the spare part.

 

E. PART QUALITY

 

The Customer is responsible for maintaining all material in good condition that will allow a repair exchange service to operate for all Customers. Should the customer return parts that are deemed not to be of adequate quality, BSE ATE reserves the right to refuse repair or deem the part

uneconomical to repair.

 

F. UNECONOMICAL TO REPAIR PARTS

 

BSE ATE will notify the Customer of all repair parts that are deemed to be beyond economical repair. The Customer can then either (i) place a purchase order with BSE ATE to cover the cost of a complete replacement, or (ii) advise BSE ATE that the part should be returned unrepaired or scrapped, and, in all events, the original repair exchange part provided to the Customer will be returned to BSE ATE.

 

G. SHIPPING, SHIPMENT INSURANCE, DUTY & TAXES

 

The Customer is responsible for all shipping, shipment insurance, duty and taxes associated with the movement of spare or repair parts from and to BSE ATE facilities.

 

 

IV. TRAINING POLICIES

 

A. TRAINING COURSES CONDUCTED AT BSE ATE FACILITIES

 

BSE ATE regularly conducts standard training courses at the BSE ATE North American Training Center located in Carlsbad, California, USA and BSE ATE Asia Training Centre located in Bangkok, Thailand. These courses provide instruction in the programming, operation, maintenance, and troubleshooting of BSE ATE and Original Manufacturer Systems and Products.

 

Lists of courses are published in the BSE ATE then current Price List.

 

In all cases, the Customer is solely responsible for all travel, subsistence and related expenses of its employees attending such courses.

 

In general, enrollees will be accepted for any particular course on a first-come, first-served basis. Course enrollment is confirmed upon Customer payment of the non-refundable BSE ATE Training Enrollment Fee. Enrollment in any one scheduled offering of a course, however, is limited; therefore, if a particular course is oversubscribed, the Customer may be limited to one enrollee for that particular offering of the course. Full course payment must be received by BSE ATE at least two weeks prior to the commencement of the course to guarantee registration. If cancellation is made at least two weeks in advance of commencement of the course, the Customer shall be refunded any course payment made (excluding the non-refundable Enrollment Fee). If cancellation is made less than two weeks prior to commencement of the course, or if the enrollee does not attend, no refund to the Customer shall be made.

 

B. TRAINING COURSES AT NON-BSE ATE FACILITIES

 

Upon request by the Customer, BSE ATE will conduct training courses at facilities other than its Training Centers. The scheduling of and enrollment in each such course is subject to the availability of BSE ATE instructors to teach the courses, and sufficient access to appropriate BSE ATE or Original Manufacturers’ Products and Systems on which to conduct the course.

 

BSE ATE will charge the Customer for each such course in accordance with BSE ATE’s then current Price List, plus all travel, subsistence and other related expenses of BSE ATE personnel involved in presenting the course.

 

When the location of the course is the Customer’s site, the Customer is obliged to make available for the duration of the course both a suitable classroom and appropriately equipped Systems in quantities proportional to the number of enrollees for use during the course.

 

 

V. BSE ATE END-USER LICENSE POLICY

 

A. THE BSE ATE END-USER LICENSE

 

BSE ATE licenses to the Customer through an End-User License Agreement (“EULA”) the right to use software products that includes the right to execute associated media, printed materials, and “online” or electronic documentation as provided by BSE ATE. By licensing, installing, or otherwise using this software, the end-user agrees to be bound by the terms of the EULA.

 

BSE ATE licenses to Customers a variety of software programs which are either owned by BSE ATE or which BSE ATE has acquired the right to sublicense from third party software suppliers and / or Original Manufacturers.

 

The Customer may not voluntarily or by operation of law assign or otherwise transfer to a third party any rights under the EULA. Any attempted assignment shall be void and have no effect. The EULA shall not grant the Customer any intellectual property rights in or to the software.

 

The terms and conditions of the EULA are hereby incorporated by reference in these sales and service policies and Terms and Conditions of Sale, with the same force and effect as if set forth in full herein.

 

B. LIMITATIONS OF USE FOR BSE ATE PROPRIETRY SOFTWARE

 

BSE ATE software may only be installed on and used with equipment provided by BSE ATE or be installed on a computer not provided by BSE ATE with the written consent of BSE ATE.

 

C. SOFTWARE SUPPORT CONTRACT

 

BSE ATE provides software support services through a Software Support Contract as described in the user manual, in “online” documentation, and/or in other BSE ATE provided materials. Any supplemental software code provided as part of the Software Support Contract shall be considered part of the software and subject to the terms and conditions of the EULA. The EULA exclusively governs the grant of license for use of BSE ATE’s software and subject matter herein, and the Software Support Contract that may be entered into between the parties shall not modify or supersede any of the provisions herein.

 

Software Support Contract terms are for one year, commencing on the date of the initial software Product shipment, and renewing for successive one year terms thereafter on each successive anniversary date of such initial shipment.

 

D. SOFTWARE SUPPORT CONTRACT NON-RENEWAL

 

Customers electing not to extend or renew a Software Support Contract on the applicable renewal anniversary date may do so at their option. However, if, at a later date, the Customer wishes to reinstate the Software Support Contract, the Customer shall be required to pay the then current annual fees in addition to the then current applicable reinstatement fee. Software Support Contracts must be purchased for all items covered by the EULA.

 

E. NO SOFTWARE TRANSFER

 

All BSE ATE software is provided to the Customer only pursuant to a license expressly made subject to the terms and conditions of the BSE ATE End-User License Agreement, and it may not be transferred by the Customer without BSE ATE’s prior written consent. In order to request transference of any BSE ATE licensed software, the Customer must first submit in writing all licensed software programs, by CPU and serial number or Node ID number, to BSE ATE for approval. The Customer will be notified in writing by BSE ATE whether or not the transfer is granted.

 

 

VI. BSE ATE CUSTOM APPLICATIONS POLICY

 

A. APPLICATIONS SCOPE OF WORK

 

BSE ATE will develop and provide a custom application at the request of the Customer. The Customer will provide BSE ATE with all relevant information and specifications concerning the application which BSE ATE reasonably deems necessary to analyze the request and/or to provide to the Customer an appropriate scope of work estimate with a written quotation of the proposed application’s price, delivery schedule and specifications.

 

B. EXECUTION OF SCOPE OF WORK

 

Upon receipt of a purchase order from a Customer, BSE ATE and the Customer may agree upon the final details of the scope of work which includes, but is not limited to, the personnel allocated to the project, relevant development program and criteria with expected milestones and the anticipated or estimated development and delivery schedule.

 

BSE ATE will neither commence the development of a custom application, nor agree to deliver such an application, unless and until such a written scope of work is agreed upon by both parties.

 

C. AMMENDMENTS TO SCOPE OF WORK

 

The Customer can at any time during the project request changes to the scope of work. These changes to the scope of work will be added or deleted, as appropriate, and a revised schedule will be provided that details any changes to the delivery of the project such as time or price. Both parties must agree to a written scope of work for any changes to be implemented.

 

D. PROJECT INNOVATIONS

 

Any new intellectual property created or conceived during the completion of custom application projects will be owned exclusively by BSE ATE unless, and then only to the extent, otherwise agreed to by BSE ATE in writing at the time of accepting the Customer’s purchase order and scope of work relating thereto. BSE ATE will grant the Customer any licenses necessary for the Customer’s use and operation of such custom application deliverables in connection with the Customer’s purchase of such applications in accordance with the terms and conditions of sale.

 

E. PROJECT MATERIAL OWNERSHIP

 

Any custom materials developed for the Customer as part of the custom applications developed by BSE ATE will be owned by BSE ATE unless Non-Recurring Engineering charges are paid in full by the Customer, but such materials will be provided and licensed by BSE ATE to the Customer in accordance with the terms and conditions of sale.

 

F. WARRANTIES

 

Any custom software or hardware developed for the Customer by BSE ATE pursuant to this Policy will have 30 day limited warranty terms.

 

 

VII. LEASE AND RENTAL SYSTEM POLICY

 

A INTRODUCTION

 

BSE ATE provides Test Systems and Subsystems for lease and / or rental to customers pursuant to an applicable lease or rental agreement, the terms and conditions of which are hereby incorporated herein by reference. These systems are configured and leased or rented to the Customer in good operational condition and are provided to the Customer to be returned in like condition. Special terms and conditions relate to these systems or subsystems and are outlined in this Policy. BSE ATE or assignee or financial partner is considered the owner of the equipment and the lease / rental agreement shall convey no right, title or interest in the equipment to the Customer other than as a lease.

 

By leasing or renting Products from BSE ATE, the Customer authorizes BSE ATE to file any and all financing statements and other documents required to perfect its security interest in the Products that BSE ATE may, in its sole and absolute discretion, deem necessary or appropriate depending on the nature of the leasing or rental arrangement.

 

B. CUSTOMER RESPONSIBILITY OF CARE

 

The Customer is responsible for ensuring that the Test system and / or Subsystems are maintained in good operating condition and repair and to protect the equipment from damage and or deterioration, other than normal wear and tear.

 

The Customer is responsible for providing full insurance coverage of a value provided by BSE ATE while the equipment is located, or in transit to, the Customers facility. Insurance coverage should encompass property insurance and liability insurance and be provided by a financially sound and reputable company who BSE ATE has the right to verify.

 

Upon completion of the lease or rental, the Customer will notify BSE ATE and request an engineer to perform a de-installation and inspection of the equipment at the Customer’s expense. BSE ATE will provide a written report of any defects on or damage to the equipment. The Customer is responsible for all charges associated with the equipment inspection, de-installation and subsequent rectification of defects and damage found (ordinary wear and tear excepted).  Lease or rental payments continue to be due until all deficiencies are rectified.

 

C. CRATING AND BARRIER BAGGING

 

The Customer is responsible for the risk of loss, cost, insurance and freight for the return of the equipment to the BSE ATE designated location using the original crates, if available, and ensuring that the equipment is barrier bagged for shipment. Should the original crating not be available, the customer is responsible for shipping the equipment to appropriate crating specification.  BSE ATE will perform a free inspection of the equipment at the appropriate receiving facility and will provide a written report of any damage for the Customer to make recompense through their insurers.

 

D. WARRANTY

 

BSE ATE Valid Quotation provides the terms of any warranty on the equipment.

 

 

E. TRANSFER AND CANCELLATION

 

Leases and Rentals are non-transferable and non-cancelable and equipment cannot be relocated or modified within the agreement period unless an appropriate breakpoint has been reached (as provided in the lease or rental agreement).

 

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